Miller v. Barnhart

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
November 9, 2006
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

ROBIN M . M ILLER, on behalf of
M elissa N . Thompson, a minor,

Plaintiff-Appellant,

v. No. 06-5083
(D.C. No. 04-CV-777-FHM )
JO A NN E B. BA RN HA RT, (N.D. Okla.)
Commissioner of the Social Security
Administration,

Defendant-Appellee.

OR D ER AND JUDGM ENT *

Before O ’B RIE N and BROR BY, Circuit Judges, and BRO W N, ** District Judge.

In this Social Security case, the administrative law judge (ALJ) determined

that the minor daughter of Robin M iller suffers from the severe impairments of

*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
**
The H onorable W esley E. Brown, Senior District Judge, District of K ansas,
sitting by designation.
attention deficit/hyperactivity disorder, a central auditory processing disorder

(CAPD ), and oppositional/defiant disorder. Evaluating the case under the

Commissioner’s childhood disability standards, the ALJ determined that

M s. Thompson’s impairments did not meet, medically equal, or functionally equal

a listed impairment, and he denied M s. Thompson’s claim for Supplemental

Security Income benefits. The A ppeals Council denied review, making the A LJ’s

decision the Commissioner’s final decision. The district court affirmed, and

M rs. M iller appealed on M s. Thompson’s behalf. W e have jurisdiction under 42

U.S.C. § 405(g) and 28 U.S.C. § 1291, and we affirm.

Standard of Review

The standard of review in Social Security cases is (1) whether substantial

evidence supports the Commissioner’s decision; and (2) whether the decision

comports with relevant legal standards. See McNamar v. Apfel, 172 F.3d 764, 766

(10th Cir. 1999). Substantial evidence is “‘such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.’” Winfrey v. Chater, 92

F.3d 1017, 1019 (10th Cir. 1996) (quoting Richardson v. Perales, 402 U.S. 389,

401 (1971)). “[B ]ecause our review is based on the record taken as a whole, we

will meticulously examine the record in order to determine if the evidence

supporting the agency’s decision is substantial, taking into account whatever in

the record fairly detracts from its weight.” Ham lin v. Barnhart, 365 F.3d 1208,

1214 (10th Cir. 2004) (quotation omitted). “W e may neither reweigh the

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evidence nor substitute our discretion for that of the [Commissioner].” Kelley v.

Chater, 62 F.3d 335, 337 (10th Cir. 1995).

Analysis

In children’s disability cases, the ALJ follows a three-step process in

determining whether the child meets the criteria for a qualification of disability:

(1) whether the child is engaged in substantial gainful activity; (2) whether the

child has an impairment or combination of impairments that is or are severe; and

(3) w hether the child’s impairment(s) meets, medically equals, or functionally

equals the listings in 20 C.F.R., Part 404, Subpart P, Appendix 1. See 20 C.F.R.

§ 416.924(a) (2004). M rs. M iller argues that the ALJ erred in his determinations

at Steps 2 and 3 and in evaluating her credibility.

I.

M rs. M iller first contends that the ALJ erred at Step 2 by not assessing

borderline intellectual functioning as one of M s. Thompson’s severe impairments.

She points to several IQ test scores in the 70s and low 80s and argues that such

scores, within the borderline range, require the ALJ to find a severe impairment

as a matter of law. See Cockerham v. Sullivan, 895 F.2d 492, 496 (8th Cir. 1990).

Cockerham, however, addressed “[a] claimant whose alleged impairment is

an IQ of 70-79 inclusive.” Id. Some of M s. Thompson’s scores are within that

range, but there is substantial evidence in the record that her intelligence is not

necessarily borderline, but low average. See Aplt. App. Vol. 2 at 316 (stating

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Full-Scale IQ of 81 on the W ISC-III puts M s. Thompson in the “Low Average

range of intellectual ability”); 303 (Iowa Tests of Basic Skills Results showing

her performance in many categories was within the average range of the national

percentile ranks); 184 (stating she has “a low average IQ of 81”); 273 (reporting

IQ score of 92 on the Test of N on-Verbal Intelligence and noting the W ISC-III

results may have been affected by her CAPD ). Further, none of the tests was

taken within two years before the relevant period, so none is valid under the

regulations. See 20 C.F.R., Pt. 404, Subpt. P, App. 1, § 112.00D10 (2004)

(stating that results of IQ tests administered between ages 7 and 16 are valid for

two years when tested IQ is above 40). It is not this court’s task to reweigh the

evidence to prefer particular scores and test results over others, but only to ensure

that the ALJ’s decision finds support in the evidence. See Kelley, 62 F.3d at 337;

Glenn v. Shalala, 21 F.3d 983, 987-88 (10th Cir. 1994). W e find no reversible

error in the ALJ’s failure to assess borderline intelligence as one of

M s. Thompson’s severe impairments.

II.

M rs. M iller next argues that the ALJ erred at Step 3 by not specifically

identifying the listed impairments that he considered and by underrating

M s. Thompson’s limitations in the domain of acquiring and using information.

See 20 C.F.R. § 416.926a(b)(1) (2004) (explaining that the Commissioner has

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classified activities into six domains for purposes of evaluating functional

equivalence).

A.

As the district court held, the regulations do not require the ALJ to refer to

specific listed impairments in determining whether an impairment functionally

equals the listings, but rather to evaluate the child’s functioning in each of six

domains. See id. § 416.926a(d) (2004). This regulation, however, addresses only

the third of the evaluations an ALJ undertakes at Step 3; before determining

whether an impairment functionally equals a listing, the ALJ must determine the

impairment does not meet or medically equal a listing. See id. § 416.924(a)

(2004). Arguably, the A LJ erred in failing to identify specific listings with regard

to these two initial inquiries. See id. § 416.926(a) (2004) (stating that, in

determining medical equivalence, the Commissioner compares the medical

evidence to “the corresponding medical criteria shown for any listed

impairment”).

In Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996), this court

determined that a decision was “beyond meaningful judicial review” where “the

ALJ did not discuss the evidence or his reasons for determining that appellant was

not disabled at step three, or even identify the relevant Listing or Listings; he

merely stated a summary conclusion that appellant’s impairments did not meet or

equal any Listed Impairment.” In Fischer-Ross v. Barnhart, 431 F.3d 729, 730

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(10th Cir. 2005), however, “[w]e reject[ed] a construction of Clifton that, based

on a reading of the ALJ’s decision as a whole, would lead to unwarranted

remands needlessly prolonging administrative proceedings.” W e continued,

“[w]here an ALJ provides detailed findings, thoroughly reviewed and upheld by

the district court, that confirm rejection of the listings in a manner readily

reviewable, requiring reversal would extend Clifton beyond its own rationale.”

Id. at 734. Here, although the ALJ did not identify the specific listings, his

analysis contained detailed discussion of the record. M rs. M iller alleges that the

ALJ did not discuss M s. Thompson’s inattention, impulsiveness, or hyperactivity,

but the ALJ’s decision does reflect consideration of such factors. See, e.g., Aplt.

App. Vol. 2 at 18 (discussing allegedly impulsive behavior and school reports

regarding her need for redirection and tendency to rush to complete tasks); 19

(noting report that she would begin working without understanding directions); 20

(noting teachers’ report of her behavior at school); 25 (assessing M s. Thompson

with “marked” limitations in the domain of attending and completing tasks). In

contrast to Clifton, the ALJ thoroughly review ed the record evidence in his

decision. W e find no reversible error.

B.

If an ALJ finds that a claimant has marked limitations in at least two of the

six domains, or extreme limitations in any of the domains, then the claimant’s

impairment(s) functionally equal(s) the listings. 20 C.F.R. § 416.926a(d) (2004).

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The ALJ determined that M s. Thompson has marked limitations in the domain of

attending and completing tasks, but that she has less than marked limitations in

the domains of acquiring and using information and interacting and relating with

others. M rs. M iller contends that the ALJ erred in finding less than marked

limitations in the domain of acquiring and using information, so that M s.

Thompson must be considered disabled under § 416.926a(d) by virtue of having

marked limitations in at least tw o domains.

A “marked” limitation occurs w hen an impairment(s) “interferes seriously

with [the claimant’s] ability to independently initiate, sustain, or complete

activities.” Id. § 416.926a(e)(2)(i) (2004). “‘M arked’ limitation also means a

limitation that is ‘more than moderate’ but ‘less than extreme.’” Id. In the

domain of acquiring and using information, the Commissioner considers how well

the claimant learns information and how well the claimant uses the information

learned. Id. § 416.926a(g).

M rs. M iller points to M s. Thompson’s academic difficulties and the several

accommodations provided to her at school as proof that she has marked

limitations in acquiring information. The record does support the inference that

M s. Thompson’s impairments affect her ability to learn, and that she struggles in

some subjects, particularly mathematics. The record does not, however, compel a

finding that her limitations are necessarily “marked” rather than “moderate.”

There is substantial evidence that M s. Thompson can learn and can use the

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information she has learned. See, e.g., Aplt. App. Vol. 2 at 222 (April 1999

examination stating M s. Thompson’s “academic achievement scores suggest

below average skills in mathematics reasoning and applications and mathematics

concepts. Otherwise, her scores are within normal limits for her age.”); 325-26

(October 2002 notation that M s. Thompson is able to do the same things as other

students in her class, and the probable cause of failure to achieve at expected

level was her choice to neglect her work); 328-29 (November 2002 examination

indicating she knew basic facts, had mildly impaired performance with short-term

memory, and knew abstractions); see also id. at 248 (progress report showing 4

Bs and 2 Cs, and noting that her grades had declined slightly); 244 (report card

showing 1 B, 3 Cs, and 2 Ds, and promotion to seventh grade); 236 (report card

showing 1 A-, 1 B, 1 B-, 1 C, and 1 D and promotion to eighth grade); 132 (report

card showing grades w ere generally A, B, C, and passing); 128 (progress report

showing 2 Bs, 3 Cs, and 1 F, and noting that she is capable of doing better w ork).

In addition, three consulting sources rated her with “less than marked” limitations

in this domain. Id. at 334, 341, 348. Given the presence of substantial evidence

to support the ALJ’s determination, we will not reverse, even though we might

have made a different finding were we the factfinders. See W hite v. Barnhart,

287 F.3d 903, 908 (10th Cir. 2002).

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 III.

Finally, M rs. M iller complains that the ALJ discounted the credibility of

her testimony. The ALJ determined that M rs. M iller’s testimony at the hearing

contradicted the totality of the evidence with regards to M s. Thompson’s

impairments.

“Credibility determinations are peculiarly the province of the finder of fact,

and we will not upset such determinations when supported by substantial

evidence.” Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995) (quotation

omitted). But “findings as to credibility should be closely and affirmatively

linked to substantial evidence and not just a conclusion in the guise of findings.”

Id. (alteration and quotation omitted).

Here, the ALJ discussed testimony that was not corroborated by other

evidence in the record, identifying particular examples, and stated that

M rs. M iller had made contradictory statements about M s. Thompson’s ability to

get along with friends and family. M rs. M iller disputes the ALJ’s view of the

evidence and relies on evidence to the contrary, but again, it is not this court’s

task to reweigh the evidence. As this court stated in another case:

After examining the record as a whole, we are persuaded that the
ALJ’s credibility findings are closely and affirmatively linked to
substantial evidence. Plaintiff’s argument to the contrary constitutes
an invitation to this court to engage in an impermissible reweighing
of the evidence and to substitute our judgment for that of the
Commissioner, an invitation we must decline.

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Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005).

Conclusion

The judgment of the district court is AFFIRMED.

Entered for the Court

W esley E. Brown
District Judge

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